Today the International Court of Justice opens a month of hearings in the pending case between Croatia and Serbia for state responsibility for genocide allegedly committed during the 1990s conflict. In the afternoon the Court will also be delivering its provisional measures order in Timor Leste v. Australia. The latter will at least to my mind be vastly more interesting than the former. Why? Because the outcome of the Croatia/Serbia case is a foregone conclusion, bearing in mind that the Court’s jurisdiction is limited solely to breaches of the Genocide Convention, and that it cannot rule on either party’s responsibility for any other wrongful acts, be it war crimes, crimes against humanity, or aggression.

In its 2007 Bosnian Genocide judgment the Court, relying on the findings of the ICTY, found that the ‘only’ instance of genocide in the otherwise far more brutal Bosnian conflict was Srebrenica, for which Serbia was not responsible, and did so by 13 votes to 2. It seems extremely unlikely that the Court will adopt a different methodological approach in the Croatian case, especially because nobody was even charged, let alone convicted, for genocide in Croatia by the ICTY. The (many) acts of ethnic cleansing committed by both sides in the Croatian conflict simply lack the requisite specific intent to physically or biologically destroy a protected group, and thus cannot reasonably be qualified as genocide. And without genocide, the Court is without jurisdiction.

This is, in other words, one of those few cases in which we can actually predict the final outcome with 99% certainty – the Court will find that terrible atrocities were committed in Croatia, but that none of them qualify as genocide, and will accordingly dismiss both Croatia’s claim and Serbia’s counter-claim. (It may say something interesting en passant, especially regarding Serbia/FRY’s relationship with the Croatian Serbs, but I doubt it). And while both parties have hired some of the best international lawyers out there, no amount of great lawyering by your Crawfords and Zimmermanns can change this assessment. The only item of uncertainty is that the composition of the Court has changed since 2007, with 8 judges currently on the bench who did not sit in the Bosnian case or the jurisdictional phase of the Croatian one. But even among these judges there’s perhaps only one or two mavericks who would be prepared to go off in a radically different direction from that of the nearly-unanimous Court in 2007.

Just like any informed observed knows what will happen, so do the two governments. But while they have been discussing the possible withdrawal of the case for years, they were ultimately unable to reach any kind of settlement that they could sell to their domestic constituencies. The public at large simply does not understand the limited jurisdictional scope of the case, sees everything through the prism of the dominant nationalist narratives (e.g. many in Croatia think that the ICJ will find Serbia responsible for aggression and war reparations, while many in Serbia think that the Court will find the present state of Croatia responsible for the World War II ustasha crimes), and especially in Croatia the government feels that it would be far less politically costly for the case to proceed than for it to be withdrawn. And so both governments will have spent millions on legal fees, while risking inflaming nationalist passions and wasting the Court’s time – all for nothing. Nor will the public airing of the atrocities of the 1990s have any impact on public opinion, beyond solidifying what people already believe and want to believe.

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[…] that the case would prove who was the aggressor and who was the victim. Miljenic should know that that is not what the case is about. But politicians have largely insisted on framing this case in terms of winning and […]

About the Author(s)

Marko Milanovic

Dr Marko Milanovic is associate professor at the University of Nottingham School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL's Editorial Board, as well as Vice-President and member of the Executive Board of the European Society of International Law. Read Full